SZGDP v Minister for Immigration and Citizenship

[2008] FCA 694

FEDERAL COURT OF AUSTRALIA

SZGDP v Minister for Immigration and Citizenship [2008] FCA 694

SZGDP v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD127 OF 2008

BESANKO J
22 MAY 2008
ADELAIDE (HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD127 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZGDP
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	22 MAY 2008
WHERE MADE:	ADELAIDE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1.The appeal be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD127 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZGDP
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE:	22 MAY 2008
PLACE:	ADELAIDE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

1. This is an appeal from an order made by a Federal Magistrate. On 22 January 2008 the Federal Magistrate dismissed an application for judicial review in relation to a decision of Refugee Review Tribunal (“Tribunal”).

2. The appellant is a citizen of the People’s Republic of China (“China”). He arrived in Australia on 11 September 2004, and he made an application to the then Department of Immigration and Multicultural and Indigenous Affairs for a Protection (Class XA) visa (“protection visa”) on 5 October 2004. He claimed that towards the end of 1997 he was ill and, at the suggestion of a friend, started to practise Falun Gong. His health improved and he started recommending Falun Gong to family members, including relatives, and workmates. He claimed that by the end of 1998 he was a “backbone member” of Falun Gong in Yinxi District, Fuqing City. He claimed that in 1999 the government cracked down on Falun Gong and he was not allowed to practise it any more. In the middle of 2001 he collected signatures and wrote letters to the Fuqing Government about the detention of Falun Gong members. The police came to his home and found some copies of letters to the government and he was detained for a month. At about the same time, he was dismissed from his work unit. He claimed that in February 2003 he and other Falun Gong members went to Beijing to appeal. He was captured by the police and detained in a labour camp for six months. During that time he was tortured and forced to work. After his release he was “supervised” and on 6 October 2003 he was caught trying to flee to Japan. He was sent back to Fuqing City, where he was detained for a period of about 15 days and was fined. Eventually he left China and came to Australia.

3. On 17 December 2004 a delegate of the Minister wrote to the appellant and advised him that his application for a protection visa had been refused. On 16 January 2005 the appellant lodged an application for review by the Tribunal. The Tribunal conducted a hearing on 9 March 2005 and the appellant attended the hearing and gave oral evidence. On 6 April 2005 the Tribunal handed down a decision which affirmed the delegate’s decision not to grant a protection visa to the appellant.

4. There was then an application for judicial review in the Federal Magistrates Court and, according to the written submissions of the first respondent on the appeal, “the matter was remitted by consent by reason of a s 424A error of the kind identified in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 230 ALR 1”.

5. A second Tribunal, differently constituted, held a hearing on 28 August 2006. The appellant attended the hearing and gave oral evidence and presented arguments.

6. On 4 September 2006 the Tribunal wrote to the appellant inviting him to comment on information set out in the letter. The invitation was given pursuant to s 424A of the Migration Act 1958 (Cth). The Tribunal referred to the fact that the appellant had appeared at a hearing on 28 August 2006 and that he had given evidence, “some of which contradicts the claims you have made in the application for a protection visa”. The Tribunal then set out five areas of concern to it. After doing this, the Tribunal said:

   “As explained above the Tribunal is of view that the above matters may raise doubts about your credibility and the veracity of the claims. You are invited to comment on this information.”

7. The appellant provided his comments on the information by letter received by the Tribunal on 21 September 2006. The Tribunal handed down its decision on 17 October 2006. The decision was to affirm the decision not to grant a protection visa to the applicant. The Tribunal member said that she was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason. For reasons set out in the decision, the Tribunal member did not accept the appellant as a witness of truth. The Tribunal member said that she was satisfied that the appellant had fabricated a number of his claims in order to support his application for a protection visa. She said that she did not accept a number of claims by the appellant and she listed those claims in the decision. Three particular matters referred to in the Tribunal’s reasons should be mentioned. First, the Tribunal member said that she did not accept as persuasive the appellant’s explanation for problems with his evidence. She said:

   “In the s 424A response, the applicant claimed that his memory ‘became bad and the doctor said I got hypomnesia’. He forgets a lot of things. On the basis of the available information and in the absence of any supporting medical evidence, the Tribunal does not accept that the applicant suffers from any clinical conditions which the Tribunal needs to take into account in assessing his claims.”

8. Secondly, the Tribunal member said in reaching her conclusions she had regard to the documents provided to the first Tribunal by the applicant in the course of the hearing conducted by the first Tribunal. She said:

   “In consideration of the evidence as a whole and given the adverse credibility finding, the Tribunal does not accept that [sic] the documents as reliable evidence.”

9. Thirdly, the Tribunal member referred to the fact that during the hearing the appellant demonstrated some knowledge of facts relating to Falun Gong. However, she said that given her adverse credibility finding and having regard to the evidence as a whole, she was satisfied that the appellant had learnt those facts to enhance his application for a protection visa and “consequently pursuant to s 91R(3) the Tribunal disregards those activities”.

10. The application for review in the Federal Magistrates Court contained three grounds and they were as follows:

    “1.The RRT ignored the fact that I was injured in the head and thus, cannot fully remember some things.

    2.I have not yet received some documents (Green book and legal advice letter).

    3.The RRT disregards the fact that I still practise Falun Gong and that this will threaten my safety if I go back to China.”

    The Federal Magistrate dealt with each of these grounds.

11. As to the first ground, he said that incorrect factual findings cannot amount to jurisdictional error, and he referred to MZWBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94; Applicant A169/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8; NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76. The Federal Magistrate said that the Tribunal considered the evidence available to it and came to a measured and logical conclusion based on it.

12. As to the second ground, the Federal Magistrate said that the first respondent had not filed the Court Book by the required date. However, he was not satisfied that the appellant had been disadvantaged or denied the opportunity to seek relief with respect to the delay in the filing of the Court Book. The Federal Magistrate noted that the appellant was in possession of the decision of the Tribunal at the time he filed his application for judicial review.

13. As to the third ground, the Federal Magistrate said that the ground appeared to isolate a single issue from what he described as a “group of findings” made by the Tribunal. The Federal Magistrate said that the thrust of the Tribunal’s overall finding “was that it did not accept that the applicant was a Falun Gong practitioner or that he had ever practised Falun Gong in China or Australia”. The Tribunal member did not accept that the appellant was ever involved in Falun Gong activities in either China or Australia or that he was involved in a range of activities promoting Falun Gong philosophy to his relatives or fellow workers. The Federal Magistrate concluded that the third ground of the application was based on a misunderstanding of the Tribunal’s findings and that it could not be sustained. The Federal Magistrate said that because the appellant was unrepresented he had considered all of the other material before him. He concluded that the Tribunal had not made a jurisdictional error.

14. The grounds of appeal to this Court are as follows:

    “1.The second Tribunal erred by not giving me notice in writing of particulars which formed part of the reasons for affirming the decision not to grant my visa.

    2.The information given for the first Tribunal was not given for the purpose of the application before the second Tribunal, thus reliance on such information is arguable.

    3.The RRT disregards the fact that I am still a Falun Gong practitioner and will be persecuted if I go back to China.”

15. The first two grounds of appeal allege errors on the part of the Tribunal which were not part of the grounds of the application for judicial review before the Federal Magistrates Court. Counsel for the first respondent submitted that neither ground had any prospect of success. As to the first ground of appeal no particulars of the information which should have been the subject of an invitation pursuant to s 424A were given by the appellant. In fact, the Tribunal did give an invitation to the appellant on 4 September 2006 and I have not been able to discern any information which should have been in the invitation but which was not. The first ground of appeal fails.

16. As to the second ground of appeal the precise point the appellant is raising is not clear from the ground of appeal. It was not made any clearer by his brief oral submissions. One interpretation of the ground is that the second Tribunal relied on information the appellant gave to the first Tribunal, but did not make the information the subject of an invitation to comment pursuant to s 424A of the Act. The only matters which could conceivably fall within such a category are the appellant’s lack of knowledge at the hearing conducted by the first Tribunal of the main sets of exercises of Falun Gong and of the main text of Falun Gong. It was not argued by the first respondent that these matters were not “information” within s 424A although that argument may well have been put. I express no opinion on that point. This claim can be decided on the ground that the matters I have identified fall within the exception in s 424A(3)(b) having regard to the authorities of this Court: SZEPZ v Minister for Immigration and Multicultural Affairs (2007) 159 FCR 291 at 299 [39]; SZJBE v Minister for Immigration and Citizenship [2007] FCA 190 at [16]-[17]. The other interpretation of the second ground of appeal is that the second Tribunal simply adopted the first Tribunal’s decision without making its own decision on the appellant’s application for review. That was a submission put by the appellant in the course of oral submissions. It is plainly not right when regard is had to the second Tribunal’s reasons for decision. The second Tribunal clearly made its own decision on the application for review. The second ground of appeal fails.

17. The third ground of appeal is in similar terms to the third ground of the application for judicial review. That ground was rejected by the Federal Magistrate and nothing was said by the appellant that suggested the Federal Magistrate had erred. The third ground of appeal fails.

18. All grounds of appeal fail and the appeal must be dismissed.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:        

Dated:        22 May 2008

Counsel for the Appellant:	The Appellant appeared in person.
Counsel for the Respondents:	Ms S Sirtes
Solicitor for the First Respondent:	DLA Phillips Fox

Date of Hearing:	16 May 2008
Date of Judgment:	22 May 2008